UNITED STATES of America, Plaintiff-Appellee, v. Romelus Pentroy MARTIN, Defendant-Appellant.
No. 12-5001.
United States Court of Appeals, Fourth Circuit.
June 5, 2014.
753 F.3d 485
As suggested by its title, the Armed Career Criminal Act focuses upon the special danger created when a particular type of offender—a violent criminal or drug trafficker—possesses a gun. In order to determine which offenders fall into this category, the Act looks to past crimes. This is because an offender‘s criminal history is relevant to the question whether he is a career criminal, or, more precisely, to the kind or degree of danger the offender would pose were he to possess a gun.
553 U.S. 137, 146, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (citation omitted). Including court-martial convictions for violent felonies in the armed career criminal tabulation furthers Congress‘s objective of identifying and deterring career offenders.
The concerns that the Supreme Court raised in Small do not compel us to deviate from the outcome that legislative history supports. Grant has not highlighted any ways in which using violent felony convictions by general courts-martial to classify individuals as armed career criminals would conflict with the ACCA‘s provisions. Although Grant correctly identifies several dissimilarities between courts-martial and civilian courts, these differences do not rise to the level of the contrasts between domestic and foreign courts that Small highlighted. For instance, in support of its conclusion that foreign legal systems may be “inconsistent with an American understanding of fairness,” the Supreme Court quoted a report from the U.S. Department of State “describing failures of ‘due process’ and citing examples in which ‘the testimony of one man equals that of two women.‘” Small, 544 U.S. at 389-90, 125 S.Ct. 1752. In light of the extreme examples the Court used and the lack of incongruity between court-martial convictions and the statutory scheme at issue, we doubt the Supreme Court would interpret Small to prevent court-martial convictiоns from qualifying as predicate offenses under the ACCA. We consequently decline to do so.
III.
For these reasons, we agree with the district court‘s decision to use Grant‘s general court-martial convictions to classify him as an armed career criminal. We therefore affirm Grant‘s sentence.
AFFIRMED
However, the same concerns that motivated the original statute spurred Congress‘s decision to expand what crimes could serve as predicate offenses under the ACCA. See Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (“[T]hroughout the history of the enhancement provision, Congress focused its efforts on career offenders—those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons.“).
Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and LIAM O‘GRADY, United States District Judge for the Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Chief Judge TRAXLER wrote the majority opinion, in which Judge DIAZ
TRAXLER, Chief Judge:
Romelus Pentroy Martin appeals the 77-month sentence imposed after he pleaded guilty to unlawful possession of a firearm by a convicted felon. See
I.
The Sentencing Guideline applicable to
When Martin pleaded guilty to the felon-in-possession charge in August 2012, he had three prior convictions, including a 2007 Maryland conviction for conspiracy to commit robbery and a 2009 Maryland conviction for fourth-degree burglary. The district court held that both the 2007 conviction and the 2009 conviction amounted to crimes of violence as defined by the Guidelines, and the court therefore assigned Martin a base-offense level of 24. After adjusting the offense level to reflect Martin‘s acceptance of responsibility, the district court determined that Martin‘s advisory sentencing range was 77-96 months, and the court sentenced Martin to 77 months’ imprisonment.
On appeal, Martin concedes that his 2007 conviction was properly treated as a crime of violence, but he contends that the district court erred by treating the 2009 conviction as a crime of violence. If the district court had not treated the 2009 conviction as a crime of violence, Martin‘s base-offense level would have been 20 instead of 24, and his advisory sentencing range would have been 51-63 months.
II.
For purposes of
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Because fourth-degree burglary does not have “as an element the use, attempted use, or threаtened use of physical force against the person of another,” it is not a crime of violence under
And as the government concedes, the crime likewise does not constitute the enumerated crime of “burglary of a dwelling.”
In Taylor, the Supreme Court defined generic “burglary” under the ACCA as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U.S. at 598, 110 S.Ct. 2143. Generic “burglary of a dwеlling” under the Guidelines follows the Taylor definition, “with the additional requirement that a burglary qualifying as a ‘crime of violence’ must involve a dwelling.” United States v. Bonilla, 687 F.3d 188, 190 n. 3 (4th Cir. 2012), cert. denied, 571 U.S. ___, 134 S.Ct. 52, 187 L.Ed.2d 47 (2013). Because
III.
When determining whether a prior conviction falls within the residual clause, our inquiry remains a categorical one, “consider[ing] whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.” James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). The parties dis-
In James, the Supreme Court explained that the enumerated offenses preceding the residual clause “provide a baseline against which to measure the degree of risk that a nonenumerated offense must ‘otherwise’ present in order to qualify” as a crime of violence. Id. at 208, 127 S.Ct. 1586 (emphasis added). The Court held that attempted burglary is a violent felony under the ACCA‘s residual clause because the risk posed by an attempted burglary crime presents a risk of physical injury “comparable to that posed by its closest analog among the enumerated offenses—here, completed burglary.” Id. at 203, 127 S.Ct. 1586.
In Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), a case involving a prior conviction for driving under the influence, the Court added an additional layer to the degree-of-risk analysis. The Court held that, in addition to establishing the baseline degree of risk, the enumerated offenses also “illustrate the kinds of crimes that fall within the statute‘s scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that presents a serious potential risk of physical injury to another.” Id. at 142, 128 S.Ct. 1581 (first emphasis added; internal quotation marks omitted). The Begay Court thus held that the enumerated offenses must be understood “as limiting the crimes that [the residual clause] covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” Id. at 143, 128 S.Ct. 1581 (emphasis added). The Court concluded that the ACCA‘s enumerated crimes “all typically involve purposeful, violent, and aggressive conduct,” id. at 144-45, 128 S.Ct. 1581 (internal quotation marks omitted), and the Court distinguished those crimes from offenses that—like DUI—“impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all,” id. at 145, 128 S.Ct. 1581. Concluding that DUI is not purposeful, violent, or aggressive, the Court held that it was not similar in kind to the enumerated offenses and thus was not a crime of violence. See id. at 145-46, 128 S.Ct. 1581.
In Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), however, the Court returned to the comparable-degree-of-risk approach, explaining that “[i]n general, levels оf risk divide crimes that qualify [under the residual clause] from those that do not.” Id. at 7 (emphasis added). As to the Begay test, the Court stated that
[t]he phrase “purposeful, violent, and aggressive” has no precise textual link to the residual clause, which requires that an ACCA predicate “otherwise involve conduct that presents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B)(ii) . The Begay phrase is an addition to the statutory text. In many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall within the former formulation and those that present serious potential risks of physical injury to others tend to be one and the same. As between the two inquiries, risk levels provide a categorical and manageable standard that suffices to resolve the case before us.
Begay involved a crime akin to strict liability, negligence, and recklessness crimes; and the purposeful, violent, and aggressive formulation was used in that case to explain the result. The felony at issue here is not a strict liability, negligence, or recklessness crime and because it is, for the reasons stated and as
Martin argues that Begay governs our analysis of the residual clause question, such that the offense-level enhancement may be sustained only if fourth-degree burglary is (1) similar in kind to the enumerated offenses—i.e., purposeful, violent, and aggressive; and (2) the degree of risk it poses is roughly similar to the degree of risk posed by burglary, the closest enumerated-crime analog. The government, however, argues that an inquiry into the degree of risk is all that is required after Sykes. In the government‘s view, Sykes limited application of Begay‘s similar-in-kind standard to crimes akin to strict liability, negligence, and recklessness crimes. Because the crime at issue in this case requires the defendant to know that his entry was unauthorized, see Dabney v. State, 159 Md.App. 225, 858 A.2d 1084, 1090-91 n. 2 (2004), it is not a strict-liability crime, and the government therefore contends that Begay is inapplicable.
Most of the circuits addressing the issue have held that Sykes limited Begay‘s similar-in-kind inquiry to crimes predicated on strict liability, negligence, or recklessness. See, e.g., United States v. Chitwood, 676 F.3d 971, 979 (11th Cir.) (”Sykes makes clear that Begay‘s ‘purposeful, violent, and aggressive’ analysis does not apply to offenses that are not strict liability, negligence, or recklessness crimes....“), cert. denied, 568 U.S. ___, 133 S.Ct. 288, 184 L.Ed.2d 169 (2012); accord United States v. Spencer, 724 F.3d 1133, 1139 (9th Cir. 2013); Brown v. Caraway, 719 F.3d 583, 593 (7th Cir.2013); United States v. Bartel, 698 F.3d 658, 662 (8th Cir.2012), cert. denied, 568 U.S. ___, 133 S.Ct. 1481, 185 L.Ed.2d 381 (2013); Harrington v. United States, 689 F.3d 124, 135-36 (2d Cir.2012); United States v. Rodriguez, 659 F.3d 117, 119 (1st Cir.2011); United States v. Smith, 652 F.3d 1244, 1247-48 (10th Cir.2011).
In this circuit, however, we have continued, even after Sykes, to apply Begay‘s similar-in-kind requirement to residual-clause cases. See Carthorne, 726 F.3d at 515 n. 12 (“The Supreme Court has also held that, for an offense to fall within the residual clause, it must be ‘roughly similar, in kind as well as in degree of risk posed,’ to arson, burglary, extortion, and crimes involving explosives.” (quoting Begay, 553 U.S. at 143, 128 S.Ct. 1581)); United States v. Davis, 689 F.3d 349, 357-58 (4th Cir.2012) (per curiam) (“[A] crime falls within the residual provision if it involves ‘purposeful, violent, and aggressive conduct,’ that ‘in the ordinary case, presents a serious potential risk of injury to another.‘” (quoting Begay, 553 U.S. at 144-45, 128 S.Ct. 1581, and James, 550 U.S. at 208, 127 S.Ct. 1586)); see also United States v. Hemingway, 734 F.3d 323, 338 (4th Cir. 2013) (declining to apply Begay standard where degree-of-risk inquiry established that prior conviction was not a crime of violence). But see United States v. Hudson, 673 F.3d 263, 265, 267-68 (4th Cir.) (mentioning Begay, but applying only the Sykes degree-of-risk standard when determining that prior conviction amounted to a crime of violence under the ACCA‘s residual clause), cert. denied, 568 U.S. ___, 133 S.Ct. 207, 184 L.Ed.2d 106 (2012). Accordingly, we will consider whether Martin‘s prior conviction for fourth-degree burglary qualifies as a crime of violence under the residual clause of
A. Degree of Risk
Under the degree-of-risk test, a prior conviction amounts to a crime of
As it was in James, the enumerated offense of burglary is the closest analog to the fourth-degree burglary conviction at issue in this case. Accordingly, the question is whether the risk of physical injury posed by the fourth-degree burglary offense is roughly similar to thе risk posed by generic burglary.
The Supreme Court has explained that the risk of physical injury associated with generic burglary comes “from the possibility of a face-to-face confrontation between the burglar and a third party—whether an occupant, a police officer, or a bystander—who comes to investigate.” James, 550 U.S. at 203, 127 S.Ct. 1586. The government contends that the same possibility of confrontation is present during the commission of fourth-degree burglary and that the potential risk of physical injury associated with fourth-degree burglary is thus roughly the same as that associated with generic burglary.
Martin, however, contends that the risk of physical injury during a generic burglary comes from the burglar‘s specific intent to commit a crime. See Taylor, 495 U.S. at 588, 110 S.Ct. 2143 (“The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some othеr person who comes to investigate.” (emphasis added)). Because fourth-degree burglary does not require an intent to commit a crime at the time of the unlawful entry, Martin argues that there is less risk of violent confrontation.
While Martin‘s argument is not without force, we agree with the government the potential risk of physical injury arising from the commission of fourth-degree burglary under
Martin argues, however, that an offender who enters a dwelling without a contemporaneous intent to commit a crime would be less likely to respond violently to the discovery of his presence. Even if we accept that argument as true, it typically will not be apparent to the discovering homeowner whether an intruder harbors an additional intent to commit an additional crime, and the homeowner‘s response to discovering an intruder will likely be the same whether or not the intruder harbors the additional intent. See James, 550 U.S. at 211, 127 S.Ct. 1586 (noting that homeowner angered by an attempted burglary “may give chase, and a violent encounter may ensue“). When faced with an angry homeowner taking protective measures, or a police officer responding to a call about suspicious activity, intruders—even those without the specific intent to commit a crime—may well resort to violence in an effort to avoid apprehension. As the Sixth Circuit has explained, the risk of physical injury inherent in such confrontations “lies not only in the intruder‘s intent, but in their volatility. People do unpredictable things when they unexpectedly encounter burglars in their homes. The burglars often reciprocate. The result is confrontations that present a serious risk of physical injury regardless of the burglar‘s initial intent.” United States v. Skipper, 552 F.3d 489, 493 (6th Cir. 2009) (emphasis added; citation omitted).
Under these circumstances, and given this country‘s strong tradition of respecting the sanctity of the home and the homeowner‘s right to exclude others therefrom, we simply cannot conclude that thе absence of the intent to commit a crime makes the breaking-and-entering at issue here significantly less risky than generic burglary. Because the same risk of confrontation and resulting physical injury associated with generic burglary arises under the elements of the crime for which Martin was convicted, we believe that the risk of physical injury posed by Martin‘s offense is comparable to the risk of physical injury posed by generic burglary. See United States v. Hampton, 585 F.3d 1033, 1043 (7th Cir. 2009) (concluding that residential entry under Indiana law, which does not include a felonious-intent element, “is similar in risk to the enumerated offense of burglary because both create a substantial risk that if the offender is confronted by someone inside the home, violence will ensue“); Skipper, 552 F.3d at 493 (conviction under Ohio‘s fourth-degree burglary statute, which does not require felonious intent at time of entry, is a violent felony under the residual clause of
B. Similar In Kind
Our conclusion that fourth-degree burglary of a dwelling and generic burglary have similar degrees of risk does not end our inquiry, as Begay requires that the prior conviction must also be similar in kind to the enumerated crimes. See Begay, 553 U.S. at 143, 128 S.Ct. 1581.
To be purposeful, violent, and aggressive, a crime must have a mens rea of at least recklessness; crimes that can be committed through negligent conduct do not satisfy the Begay inquiry. See id. at 439-40 (applying Begay to conclude that involuntary manslaughter under North Carolina law is not a crime of violence under the residual clause of
As Maryland‘s highest court has made clear, the statute at issue in this case requires proof of the defendant‘s “general criminal intent to break and enter” the dwelling. Warfield v. State, 315 Md. 474, 554 A.2d 1238, 1250 (1989) (considering
The Warfield court explained that the statute‘s knowledge requirement “is designed primarily to exclude from criminal liability both the inadvertent trespasser and the trespasser who beliеves that he has received an express or implied permission to enter or remain.” Id. at 1250 (quoting Model Penal Code § 221.2 (1985)). Accordingly, it is an affirmative defense to a
Because the defense requires a reasonable belief of permission to enter the dwelling, a defendant who unreasonably believed that he had permission to enter would be guilty under
IV.
Although we conclude that
VACATED AND REMANDED.
DIAZ, Circuit Judge, concurring:
This case raises a vexing question regarding the application of the crime of violence enhancement found in the Guidelines: To what extent does Begay‘s1 “similar in kind” test for analyzing offenses under the residual clause survive Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011)?2 Specifically, would the Supreme Court apply that test in determining whether Martin‘s fourth degree burglary conviction under Maryland law qualifies as a crime of violence? Or would the Court again change course?3
Were I writing on a cleaner slate, I would stop after applying the “degree of risk” test the Chief Judge posits in Part III.A. of his opinion and find that Martin‘s fourth degree burglary conviction is for a
But, as the Chief Judge explains, it appears we must also apply Begay‘s teaching here, which requires that we consider whether the offense conduct is “similar in kind” to the residual clause‘s enumerated offenses—i.e., whether the offense is “purposeful, violent, and aggressive.” See id. at 143-45, 128 S.Ct. 1581. Because negligent conduct is all that is needed in Maryland to convict someone for breaking and entering the dwelling of another, the crime does not always involve the purposeful, violent, and aggressive conduct that is typical of the Guidelines’ enumerated crimes. Thus, I am compelled to agree with the Chief Judge that Martin‘s sentence was improperly enhanced.
“[T]o put it mildly,” the residual clause is “not a model of clarity.” See James, 550 U.S. at 217, 127 S.Ct. 1586 (Scalia, J., dissenting). The clause “is nearly impossible to apply consistently,” and the Supreme Court‘s jurisprudence “has created numerous splits among the lower federal courts.” See Chambers v. United States, 555 U.S. 122, 133, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (Alito, J., concurring in the judgment); cf. United States v. Vann, 660 F.3d 771, 797 (4th Cir. 2011) (en banc) (Davis, J., concurring) (“At the end of the day, it may well be that Justice Scаlia is right: that the residual clause of the Armed Career Criminal Act is unconstitutionally vague.“)
The Supreme Court has struggled mightily to make sense of this sphinx-like provision, but the clause remains an elusive target. We are told that a prior conviction triggers the sentencing enhancement when “the risk posed by [the offense at issue] is comparable to that posed by its closest analog among the enumerated offenses.” See James, 550 U.S. at 203, 127 S.Ct. 1586 (majority opinion). But, at least in some cases, the offense must also be “roughly similar, in kind as well as in degree of risk posed, to the [enumerated] examples.” See Begay, 553 U.S. at 143, 128 S.Ct. 1581. To be roughly similar in kind, the crime must be “purposeful, violent, and aggressive.” See id. at 145, 128 S.Ct. 1581. Fear not though, because “[i]n many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk.” See Sykes, 131 S.Ct. at 2275. As Justice Scalia noted in dissent in Sykes, however, why the inquiry will often be redundant, and when it will not be, “are not entirely clear.”4 See id. at 23.
To further complicate matters, the Court in Sykes emphasized that ”Begay involved a crime [(driving under the influence)] akin to strict liability, negligence, and recklessness crimes; аnd the purposeful, violent, and aggressive formulation was used in that case to explain the result.” Id. at 13 (majority opinion). That statement, however, leaves open a question implicated here—whether Begay applies to all strict liability, recklessness, and negligence offenses.
I am not absolutely confident that the Court would actually apply Begay in this instance, but neither can I discount the possibility. I therefore join the Chief Judge‘s opinion.5
O‘GRADY, District Judge, dissenting:
In this case we are called to decide whether Appellant Romelus Martin properly received a sentence enhancement under
I.
I am in agreement, as is Judge Diaz, with Section III(A) of the majority opinion, in which the Chief Judge deftly analyzes this case under the “degree of risk” test utilized by the Supreme Court in James and Sykes. In 2009, Martin was convicted in Maryland of “break[ing] and enter[ing] the dwelling of another” in violation of
In Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the Supreme Court added a layer to the “degree of risk” test as it considered whether a prior conviction for driving under the influence was a crime of violence under the
Three years later in Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), the Court revisited the residual clause, holding that a conviction for knowingly or intentionally “flee[ing] from a law enforcement officer” in a vehicle was categorically a crime of violence under
In the aftermath of Sykes, the courts of appeals have varied in their treatment of Begay‘s “similar in kind” test. Some courts have suggested that Begay may not have survived Sykes at all. See, e.g., United States v. Sandoval, 696 F.3d 1011, 1016-17 n. 8 (10th Cir.2012) (“[I]t is hard to say whether the Begay test survived Sykes....“). See also United States v. Honeycutt, 2011 WL 2471024, at *4 (S.D.W.Va.2011) (“Even as to such ‘strict liability, negligence, and recklessness crimes,’ however, it is far from clear that the Supreme Court is still committed to the Begay test.“). Most courts, as observed by the Chief Judge, have continued to apply Begay‘s “similar in kind” test only to strict liability, negligence, and recklessness crimes. See United States v. Chitwood, 676 F.3d 971, 979 (11th Cir.2012) (collecting cases). Because I find that the Fourth Circuit has taken that path and that burglary of a dwelling under
II.
Although this circuit has continued to make reference to Begay‘s “similar in
In other post-Sykes residual clause cases, this Court has sidestepped the “similar in kind” test altogether. For example, in United States v. Hudson, our analysis revolved only around the “degrеe of risk” approach without any consideration of the “similar in kind” or “purposeful, violent, and aggressive” tests. 673 F.3d 263, 266-69 (4th Cir.2012). See also United States v. Tillery, 702 F.3d 170, 176-77 (4th Cir.2012) (holding that the inherent risk of physical injury that results from eluding police in a motor vehicle renders it a crime of violence, without any mention of Begay). There appears to be only one reported post-Sykes case in which this circuit employed both the “degree of risk” and “similar in kind” analyses, and that case supports the conclusion that crimes requiring knowledge (as
Ultimately, as Judge Wilkinson stated in United States v. Vann: ”Sykes clarifies that the risk of physical harm need not necessarily arise from ‘purposeful, violent, and aggressive’ conduct to qualify as an ACCA predicate.” 660 F.3d 771, 804 (4th Cir.2011) (en banc) (Wilkinson, J., concurring). The mention of the Begay test in some of our post-Sykes decisions need not be taken as an indication that we have continued to apply the “similar in kind” requirement to all residual clause cases. Rather, while we recognize the continued relevance of Begay in some cases, we have not required that crimes of violence be “purposeful, violent, and aggressive” outside the context of strict liability, negligence, аnd recklessness offenses.5 Be-
III.
Although there is no specific intent requirement in
In Herd v. State, the Maryland Court of Special Appeals drove home the statute‘s knowledge requirement. 125 Md.App. 77, 724 A.2d 693 (1999). After considering Warfield and Green, the court emphasized that although fourth degree burglary is a general intent crime, “the mens rea must, indeed, be criminal.” Id. at 700. Without a knowledge requirement, the statute would “ensnare with undiscriminating tentacles all sorts of actors whom the Legislature never intended to treat as criminal.” Id. at 701. It is therefore clear that
Because breaking and entering under
In the criminal law, it is generally the case that an honest and reasonable mistake of fact is a defense to a general intent crime when it negates the mens rea required for the offense. Warfield, 554 A.2d at 1252; 21 Am.Jur.2d Criminal Law § 153. On the other hand, an honest but unreasonable mistake is often not a de-
volve purposeful, violent, and aggressive conduct” as set forth in Begay.
Residual clause cases from the Supreme Court and from this circuit confirm that the existence of only a reasonable mistake defense does not compel the conclusion that crimes requiring “knowledge” should be treated as negligence crimes. Perhaps the best example is Sykes itself. The Indiana vehicular flight statute the Court considered in Sykes,
Importantly, Indiana had codified in its criminal law a general defense based on mistake—specifically, “[i]t is a defense that the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the culpability required for commission of the offense.”
The Fourth Circuit reached the same result in one of our most recent residual clause cases. In United States v. Tillery, this Court held that eluding police in a vehicle was a crime of violence under the Guidelines. 702 F.3d 170. Under the Virginia statute at issue, it is a violation of thе law for a person, having received a visible or audible signal to stop from a law enforcement officer, to drive in willful and wanton disregard of such signal or to attempt to elude law enforcement by any other means.
Despite Begay‘s use of the word “purposeful,” the “similar in kind” analysis does not require that all crimes of violence have a mens rea of “intent” or “purpose.”9 As noted above, in this Court‘s only true application of Begay since Sykes, we specifically found that possession of a shank in prison was a crime of violence because it required “proof that the inmate knowingly possessed the prohibited object,” and therefore involved “‘purposeful’ conduct.” United States v. Mobley, 687 F.3d 625, 631 (4th Cir.2012). Thus, even under Begay, we have held that crimes requiring a mens rea of “knowledge” are “purposeful” (and for the reasons above, the existence of a reasonable mistake of fact defense does not alter this result).
Finally, it must be remembered that in determining whether a statute is a “crime of violence” under either James, Begay, or Sykes, we are required to look to the manner in which the crime is typically committed. In James, the Supreme Court stressed that while one could “imagine a situation in which attеmpted burglary might not pose a realistic risk,” the ACCA is based on “probabilistic concepts” and “does not require metaphysical certainty.” 550 U.S. 192, 207-08, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). See also United States v. Carthorne, 726 F.3d 503, 507 (4th Cir.2013) (examining the risk of injury “in the usual case“); United States v. Foster, 674 F.3d 391, 394-95 (4th Cir.2012) (Wilkinson, J., concurring in the denial of rehearing en banc) (explaining that to “hypothesize unusual cases” is “at odds with the simple common sense on which the Supreme Court has relied in ACCA cases“). Most importantly, Begay itself only requires that a crime of violence ”typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct“; there has never been a need to demonstrate that those factors are present in every conceivable case.10 The majority correctly notes that in a technical sense, because an unreasonable mistake of fact is not a defense, violation of
IV.
As Judge Diaz observed, the proper reach of
Bruce GUNKLE; Sherilyn S. Gunkle, Petitioners-Appellants v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 13-60245 Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 19, 2014.